Brexit, the Human Rights Act and disciplinary proceedings

This article dispels any concern that the Human Rights Act 1998 (HRA 1998) might be abolished by Brexit and looks at the effect which the Act has on disciplinary proceedings.

The European Convention on Human Rights

There is no direct connection between the European Convention on Human Rights (the Convention) and the European Union (EU).

The Convention was created by the Council of Europe, a group of European nations formed in May 1949 in order to promote international protection for human rights following the atrocities committed during the Second World War. The ten founder members included the UK and it now has 47 member states.

The Convention was signed in Rome on 4 November 1950 and came into force on 3 September 1953. The European Court of Human Rights (ECHR) was set up in 1959 as an international court to rule on individual and state applications alleging violation of the Convention rights.

The ECHR delivered its first judgment on 14 November 1960 and, since then, has delivered more than 10,000 judgments.

The HRA 1998 came into force on 2 October 2000. It does not incorporate the Convention in its entirety. The Convention rights which have effect under the Act are set out in Schedule 1. They are Articles 2 to 12, 14, and 16 to 18 of the Convention, as well as Articles 1 to 3 of the First Protocol and Articles 1 and 2 of the Sixth Protocol.

The main omissions are Articles 1 and 13. Article 1 places an obligation on member states to secure to everyone within their jurisdiction the rights and freedoms found in the Convention. As such, it was otiose when enacting the Act.

Article 13 states that everyone whose rights are violated should have an effective remedy before a national authority. Inclusion of Article 13 would arguably have infringed on parliamentary sovereignty, as it would have triggered a right to compensation if a statute was deliberately enacted in disregard of Convention rights.

The main purpose of the Act is to require public authorities to respect Convention rights and by s.6 it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(3) defines ‘public authority’ to include a court or tribunal and ‘any person certain whose functions are functions of a public nature’. The Solicitors Regulation Authority (SRA) and the Solicitors Disciplinary Tribunal (SDT) are both public authorities within the meaning of the Act.

The overlap between the ECHR and the EU

Although there is no direct link between the EU and the ECHR, there is significant overlap. All the members of the EU are members of the Council of Europe and the EU has given formal recognition to Convention rights by Article 6.2 of the Treaty on European Union and by the EU Charter of Fundamental Rights.

Article 6.2 of the Treaty on European Union provides that the EU shall respect the rights guaranteed by the Convention as general principles of community law.

The EU Charter of Fundamental Rights is a codifying document which brings together in a single document the fundamental rights protected in the EU. It includes the Convention rights as well as rights derived from the case law of the Court of Justice of the EU and other rights arising from the common constitutional traditions of EU countries.

The Charter became legally binding on EU institutions and on national governments on 1 December 2009. Article 51 of the Charter states that the provisions of the Charter are addressed to the member states only when they are implementing EU law and that member states ‘should respect the rights, observe the principles and promote the application thereof in accordance with their respective powers’.

The white paper on exiting the EU

In March 2017 the UK Government published a white paper on ‘Legislating for the UK’s withdrawal from the EU’.

The white paper provides that a Great Repeal Bill will convert EU law into domestic law on the day the UK leaves the EU. The rationale for that conversion is set out in the White Paper as follows:

‘… this approach will provide maximum certainty as we leave the EU. The same rules and laws will apply on the day after exit as on the day before. It will then be for … the UK to decide on any changes to that law, after full scrutiny and proper debate’ (pp.5 and 7).

The Charter of Fundamental Rights will have a different status when the UK leaves the EU. That is because:

‘The Charter only applies to Member States when acting within the scope of EU laws, so its relevance is removed by our withdrawal from the EU’ (para.2.23).

However, the White Paper expressly states that there are no plans to withdraw from the ECHR:

‘The UK’s withdrawal from the EU will not change the UK’s participation in the ECHR and there are no plans to withdraw from the ECHR’ (para.2.22).

The future of the HRA 1998

Although Brexit and the Great Repeal Bill will not affect the HRA 1998, there are periodically reports in the press that the Conservative Government might abolish the HRA 1998 and replace it with a British Bill of Rights, so that UK citizens can only obtain protection for their rights from Parliament and the UK courts. That was reflected in the Conservative Party manifesto of May 2017 in the following way:

‘We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes’ (p.37).

That is not a goal shared by everyone. Liberty, for example, (‘Human rights in the UK after Brexit’) pledges:

‘… after Brexit, the European Convention, and the Human Rights Act which enshrines it in UK law, will be more important than ever. They will remain the most fundamental safeguard against abuses of human rights in the UK. We will keep campaigning to ensure that these vital tools are not taken away …’

Liberty may not have had the rights of solicitors in mind when making that pledge, but Convention rights affect the outcome of some disciplinary proceedings and the following sections of this article highlight some of the main developments in solicitors’ disciplinary law which have been affected by Convention rights.

The main Articles affecting disciplinary law

The two main Articles affecting disciplinary law are Article 6 (the right to a fair trial) and Article 8 (the right to respect for private and family life).

Article 6: The right to a fair trial

Article 6 has three sections. The first relates to civil and criminal proceedings, the second and third to criminal proceedings:

‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law.

Everyone charged with a criminal offence has the following minimum rights:

to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

to have adequate time and facilities for the preparation of his defence;

to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

to have the free assistance of an interpreter if he cannot understand or speak the language used in court.’

Historically, English legal proceedings have been divided into criminal and civil proceedings. Disciplinary law does not fall neatly into either category.

The cases are heard in a civil tribunal, but they involve a prosecutor laying charges against a defendant who faces the prospect of a fine or the loss of the ability to earn a living as a solicitor. The hybrid nature of the disciplinary proceedings has been considered by the ECHR.

In Brown v UK (38644/97), the ECHR had to consider whether a complaint made by an English solicitor relating to tribunal proceedings should to be treated as a civil or criminal complaint. The ECHR stated that the court should adopt a threefold test by having regard to:

the classification in domestic law;

the nature of the offence itself; and

the nature and severity of the sentence.

In the circumstances of the case, the ECHR decided that the solicitor’s complaint was a civil complaint. The charges were classified under domestic law as disciplinary offences and were examined in a tribunal without any involvement by the police. The offences were of a disciplinary nature which applied only to persons of a specific professional group rather than the general public. The severity of the penalty, which was a £10,000 fine, was not of itself such as to render the charges criminal in nature.

In Albert and Le Compte v Belgium (7299/75 and 7496/76), the ECHR again decided that disciplinary proceedings against two Belgian doctors could not be characterised as criminal, but recognised the hybrid nature of disciplinary proceedings.

The ECHR said that it may not hold good for all disciplinary cases to not be characterised as ‘criminal’ and, on the facts of the case, the court decided that subparas. (a), (b) and (d) of Article 6 (which relate to criminal proceedings) should be taken into account in deciding whether the disciplinary proceedings constituted a fair trial.

Article 8: The right to respect for private and family life

Article 8 states:

‘1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

Although Article 8 relates to ‘private and family life’, it often has a direct bearing on regulatory proceedings because the ECHR recognises that the right to earn a living has an impact on private and family life.

In Mateescu v Romania (11944/10), a Romanian doctor trained to become a lawyer, but was not permitted to practise simultaneously as a lawyer and a doctor. Each profession required 100% dedication on the part of the person practising it. The ECHR said there had been a violation of his Article 8 rights and set out the link between Article 8 and the right to carry on a profession:

‘The Court recalls that Article 8 of the Convention protects a right to personal development and the right to establish and develop relationships with other human beings in the outside world … and that the notion of “private life” does not in principle exclude activities of a professional or business nature … It is after all in the course of their working lives that the majority of people have a significant opportunity to develop relationships with the outside world.’

On the basis of that principle, the ECHR has held that measures which impair the right of access to the profession of a lawyer, or impair the applicant’s ability to carry on the profession, or place restrictions on registration as a member of the profession, all fall within Article 8.

Examples of the effect of Articles 6 and 8 on SDT decisions are set out below.

Delay

It is common for solicitors facing SRA investigations to suffer lengthy delays. The delays are often very stressful and can also paralyse careers and business development.

In Aaron v Law Society [2003] EWHC 2271, Auld J said that the reasonable time requirement in Article 6(1) applies to professional disciplinary proceedings and that the uncertainty that springs from and festers with unnecessary and unreasonable delay can, in itself, cause great injustice to practising solicitors whose livelihood and professional reputations are at stake.

Although the courts recognise that delay can be debilitating, the burden of establishing an unreasonable period of delay is often onerous.

In SRA v Davis (SDT 9017-2004), the SDT said that when assessing periods of delay, time will normally start to run from the date on which the respondent received notice that his or her case was being referred to the SDT. As most periods of delay arise during the SRA’s investigation stage, and before the decision to refer the respondent to the SDT, many solicitors facing lengthy investigations would consider that decision to be harsh. The SDT did, however, recognise in Davis that there may be cases where time should start to run from the moment that the solicitor knows that the SRA is actively investigating misconduct.

In Langford v Law Society [2002] EWHC 2802, the High Court said that a relatively high threshold has to be crossed before it can be said in any particular case that a period of delay is unreasonable so as to give grounds for real concern that a Convention right has been violated. When deciding whether a period of delay is unreasonable, the court should have regard to the complexity of the case, the conduct of the SRA and the respondent’s own conduct.

In practice, the SDT has found that a respondent’s Article 6 rights have been breached by delays during the period from the date of the decision to refer the respondent to the SDT to the date of issue of the rule 5 statement of 11 months (SRA v Shelton (SDT 9465-2006)), but typical examples of unreasonable delay range from 24 months (in SRA v Rutherford (SDT 9074-2004)) to 42 months (in SRA v Fallon (SDT 9154-2004)).

Unlike common law cases of delay, there is no need to show prejudice under Article 6 (although prejudice does have a bearing on remedy).

The SDT will consider whether a fair hearing is still possible and whether there are any other compelling reasons why it would be unfair to try the case or any part of it. If it is possible for a fair trial to take place, the delay could be reflected in a reduced sanction or a more favourable order for costs. If a fair trial cannot take place, the case will be struck out. The SDT has struck out cases where there have been unexplained delays of 30 months, 33 months and 40 months (SRA v Judge (SDT 9028-2004); SRA v Sancheti (SDT 9795-2007); SRA v Fallon).

Publicity

In practice, the SRA publishes decisions to bring proceedings before the SDT on its website once the SDT proceedings have been issued and the SDT has certified that there is a prima facie case. The publication can adversely affect a solicitor’s practice because the SRA website has a high Google rating and potential clients receive notice of the SDT proceedings. Many solicitors consider that to be unfair in circumstances where the SDT hearing has not taken place and there are no disciplinary findings against them.

The SRA’s decision to publish is made on the basis of SRA guidance headed ‘Publishing Regulatory and Disciplinary Decisions’. By the guidance, factors which support a decision to publish include the importance of transparency in the SRA’s decision-making process and the need to maintain public confidence in the provision of legal services by demonstrating that regulatory action is being taken. Factors which support a decision not to publish include a significant risk of breaching someone’s Article 8 rights. In practice, the SRA almost invariably decides to publish.

In Andersons v SRA [2012] EWHC 3659, the High Court stated that an earlier edition of the SRA’s publication policy was compatible with Article 8 because it envisaged individual decisions on individual facts and that the decision made to publish in that case did not infringe the applicant’s Article 8 rights.

Representation at the tribunal hearing

The Court of Appeal has considered the question of whether the absence of financial assistance for advice and representation in disciplinary proceedings breaches an individual’s Article 6 rights.

In Pine v Law Society [2001] EWCA 1574, the Court of Appeal said that the solicitor would only be able to show that he was entitled to legal aid for representation in disciplinary proceedings in exceptional circumstances where the withholding of legal aid would make the assertion of a civil claim, or the defence to the allegations, practically impossible or where it would lead to obvious unfairness of the proceedings. Neither the severity of the possible consequences of the SRA’s allegations, nor the inhibiting effect of the solicitor’s emotional involvement gave rise to unfairness.

Two years later, in Awan v Law Society [2003] EWCA 1969, the Court of Appeal reached a similar submission after saying that the allegations against the solicitor were of such stark simplicity that he did not require legal representation to answer them.

In both cases the court cited with approval the ECHR decision in X v UK (1984) 6 EHRR 136 that only in exceptional circumstances, where the withholding of legal aid would make assertion of a civil claim practically impossible, or where it would lead to an obvious unfairness in the proceedings, could such a right be invoked by virtue of Article 6(1).

The Court of Appeal did, however, say in Pine that, if a solicitor could not attend the tribunal because he could not afford the travel fare to London, there could be a breach of his Article 6 rights.

In later cases the SRA has offered to pay a travel fare to London for a solicitor living in England (SRA v Tiplady (SDT 10026-2008)) and the travel, accommodation and subsistence expenses of a solicitor living in India (SRA v Sancheti).

Striking off

‘In most cases the Order of the Tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence … the second purpose is the most fundamental of all: to maintain the reputation that the Solicitors’ profession is one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession, it is often necessary that those guilty of serious lapses are not only expelled but denied readmission.’

Bolton was decided six years before the HRA 1998 came into force and did not consider the solicitor’s Article 8 rights.

In 2003, in Nahal v Law Society [2003] All ER (D) 417, the appellant submitted that a strike-off was disproportionately severe in a case which did not involve a finding of dishonesty. When dismissing the appeal, the High Court said that the HRA 1998 did not disturb the principle in Bolton that the reputation of a profession is more important than the fortunes of any individual member.

In 2008, in Salsbury v Law Society [2008] EWCA 1285, the Court of Appeal affirmed the decision in Nahal and said that the principle remains good law despite Article 8.

Appeals against sentence

It is difficult to appeal against a tribunal sentence because the courts pay considerable respect to the sentencing decisions of the SDT. That is because the SDT is an expert and informed tribunal best able to assess what is needed to uphold the standards of the profession.

In 1956, in Re a Solicitor [1956] 3 All ER 516, Lord Goddard said that it would require ‘a very strong case’ to interfere with a tribunal decision on sentence.

That was reiterated in 1994 by Sir Thomas Bingham MR in Bolton who said ‘there is no controversy about the correctness of that principle which, for the last 30 years at least, has been clearly understood and very regularly applied’.

The interface between the requirement for ‘a very strong case’ and the Article 6 requirement for a fair hearing (which includes a fair appeal) was considered after the introduction of the HRA 1998 by the Court of Appeal in Salsbury.

In Salsbury, Jackson LJ said:

‘I conclude that the statements of principles set out by Sir Thomas Bingham in Bolton remain in good law, subject to this qualification. In applying the Bolton principles the Solicitors Disciplinary Tribunal must also take into account the rights of the solicitor under Article 6 and 8 of the Convention. It is now an overstatement to say that a very strong case is required before the Court will interfere with the sentence imposed by the Solicitors Disciplinary Tribunal. The correct analysis is that … absent any error of law, the High Court must pay considerable respect for sentencing decisions of the Tribunal. Nevertheless, if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the Court will interfere.’

Further developments

The Convention rights continue to effect changes in disciplinary law. Potential future changes might relate to the use of antecedents in the tribunal and the test for appeals.

As regards antecedents, the tribunal rules require the tribunal to take account of any previous occasions on which a respondent has appeared before the tribunal when considering what sentence to impose.

In R(T) v Chief Constable of Greater Manchester Police [2014] UKSC 35, the Supreme Court said, in relation to a career involving work with children, that, as a conviction imposed in public recedes into the past, it becomes part of a person’s private life and that a law requiring a person to disclose all previous convictions that affects the ability of a person to pursue a chosen career constitutes an interference with that person’s Article 8 rights which would only be lawful if the interference is necessary.

There may be an argument for saying that a relatively minor incident of misconduct which occurred many years ago should not be disclosed to the tribunal when determining sentence.

As regards appeals, the High Court regularly states that an appellant must show that the tribunal decision was ‘clearly inappropriate’ and not simply ‘wrong’.

In 2013, in Re B (a Child) [2013] UKSC 33, the Supreme Court said, in relation to care proceedings, that the word ‘plainly’ within the phrase ‘plainly wrong’ should be abandoned as it either causes confusion or means that an appellate court cannot vary or reverse a judge’s conclusion if it considers it to have been ‘merely’ wrong. Lord Neuberger stated:

‘… whatever view the Strasbourg Court may take of such a notion, I cannot accept it, as it appears to me to undermine the role of Judges in the field of Human Rights’

In 2013, in Obi v SRA [2013] EWHC 3578, Mostyn J said the test in Re B should not be confined to adoption proceedings and that the court should decide an appeal against sentence in disciplinary proceedings by asking itself whether the tribunal’s decision was ‘wrong’ and not ‘clearly inappropriate’. Despite those decisions, the High Court continues to say in many cases that the tribunal decision will stand unless it is shown to be ‘clearly inappropriate’.

Although court decisions on Convention rights are sometimes slow to filter down to tribunal decisions, it is difficult to see a good reason for abandoning the Convention rights. They provide solicitors with protection on decisions which can affect their ability to pursue their careers while preserving public confidence in the profession.

This article was first published by The Law Society’s Legal Compliance Bulletin: Issue 50, July 2017. It is reproduced with kind permission. You can read the original article by clicking here.

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This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.